Visual Artists Copyright D. Langwallner


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Presentation given by David Langwallner for the event Visual Artists & The Law a VAI event in partnership with The Bar Council. David's presentation focused on issues around originality, parody and fair use. For full details see:

Copyright David Langwallner

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Visual Artists Copyright D. Langwallner

  1. 1. Visual ArtistsArtistic Copyright/ foundational principles and select issues
  2. 2. Foundational Principles• Copyrights and Related Rights Act 2000 Section 2/1 of the Act states that:• Artistic work includes a work of any of the following descriptions, irrespective of their artistic quality:• Photographs, paintings, drawings, diagrams, maps, charts, pl ans, engravings etchings, lithographs, woodcuts, prints or similar works, collages or sculptures (including any cost or model made for the purposes of a sculpture).• Works of architecture, being either buildings or models for buildings and• Works of artistic craftsmanship.• open up the possibility that other works can be included which do not fall within a conventional artistic copyright classification.
  3. 3. Foundational Principles• The second point to note is that such works are protected irrespective of their artistic quality• Interlogo AG v. Tyco Industries Inc the court indicated that slavish copying will not meet the originality test. The court also indicated that only the “visually significant” aspects of an artistic work are copyright protected. In relation to works in general that case also establishes that “there must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work.”• the standard of originality for conventional works of painting and drawing has been traditionally accepted as low.
  4. 4. Harpbond, Bridgeman and Painer• Merchandising v Harpbond – permanent, surface, insubstantial or de minimas, bare idea, original.• The traditional test for a photograph is that the standard of originality can be very low and can be made out with the opportunistic hitting of a button.• Bridgeman the United States court employed a different test of originality that of Feistwhich requires a minimal level of creativity.Advocate General’s Opinion in Case C-145/10, Painer v Standard VerlagsGmbH is also relevant with respect to photographs.Article 6 of the Term Directive. ….. a photograph is original if it is the photographer’s own intellectual creation (reflecting his personality).originality is ‘that a photographer “leaves his mark” on a photo’ by using the available formative freedom. … sufficient formative freedom in determining ‘the angle, the position and the facial expression of the person portrayed, the background, the sharpness, and the light/lighting’
  5. 5. Lucas and SculpturesLucas: UK Supreme Court on 27th July 2011. The court reasoned that the helmet was a mixture of costume and prop and that its primary purpose was utilitarian that is to say to express an idea as part of a character portrayal in the film thus the helmet lacked the necessary quality of artistic creation to be deemed a sculpture.It was the Star Wars film not the sculpture that was the work of art.
  6. 6. Collages and Artistic CraftsmanshipCollages:• In Creation Records it was determined that the distribution of a diverse group of objects and persons even though arranged as a composition could not constitute a collage.• The court indicated that there had to be a fixing to some physical medium and not just objects strew around.Works of Artistic Craftsmanship• real artistic quality or Artistic intent?• a work of artistic craftsmanship, unconstrained by functional considerations
  7. 7. Parody and Moral RightsParody in Art:The question remains whether parody is a defence in this jurisdiction.1: The US has protected parody and has relied inter alia on the constitutional protection of freedom of expression. Parody is speech? In our culture also there is protection of freedom of expression under Article 40.6 of the Constitution and Article 10 of the European Court of Human Rights.2: Fair dealing? Within the rubric of fair dealing there is criticism or review.3: Finally, Clark argues that Parody could be made out by the defence of incidental inclusion.Moral Rights:Finally mention should be made of the moral Rights and in particular the integrity right under Section 109 of the Copyright and Related Rights Act 2000. This right protects the author even if he or she has assigned the economic copyright to “object to any distortion, mutilation or other modification of, or any derogatory action in relation to the work.”An interesting question is how this interacts with parody.
  8. 8. Practical Issues and Problems• Copyright notice –endorse upon work on face margin or bleed the copyright symbol, year of making, intials and name• Keep a Record email a copy to yourself at the date of creation keep post office receipt leave envelope unopened.• Place records with third party you trust• Register with US Copyright Office• Reflect all agreements in writing especially to resolve ownership or right to use issues in commissioned works• Contact The Irish Visual Rights Organisation!!